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The Claimant underwent a hip replacement at the Defendant’s hospital. The surgeon had recommended a relatively new device, a “Mitch PER” which was designed to conserve as much bone as possible.

However, after the operation the Claimant began to suffer a series of complaints which required repeated surgical interventions and which caused her great pain and suffering. She claimed that the surgeon who operated on her, failed to advise her about the surgical options available to her, failed to obtain her informed consent for the operation and failed to advise her of about the lack of data about the failure and the survival rate of the components used in the procedure.

Mrs Justice McGowan sitting in the High Court, set out four agreed issues: -

What did the surgeon say to the Claimant about the procedure?

Did he do what was reasonable to ensure she understood?

Which procedure would she have chosen in any event?

Was he obliged to tell her about the limited data available on the device used?

McGowan J referred to the Supreme Court decision of Montgomery v Lanarkshire Health Board [2015] UKSC 11 which changed the law of consent. Applied to this case, that meant that: -

The Claimant had a fundamental right to be properly informed of the nature and risk of the procedure proposed.

The passing of that information should have been carried out in a way that was comprehensible by her.

This was not a case in which the withholding of any information about risk could be justified on clinical grounds.

McGowan J went over the evidence of the Claimant and the Defendant. She then addressed the four issues above.McGowan J preferred the evidence of the surgeon who undertook the hip operation, which was that a full frank explanation had been given to the Claimant. Again the fullness of the recorded procedure was to be preferred over that of the Claimant. On the evidence of the Claimant (who had refused to answer the question as to whether she would have chosen the Mitch PER implant if it had been explained that it was best for her), it was unlikely that she would have chosen an older procedure. It was agreed that the surgeon did not tell the Claimant about the success rates for this implant. However, the Defendant’s expert witness had said that a reasonable body of doctors in the same position would not have given such information to a patient, where the Claimant’s expert witness had simply said that the lack of information on this issue was a “concern”.

The claim would be dismissed.

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About the Author

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.